Com. v. Purcell

• Citation: 589 A.2d 217,403 Pa.Super. 342
• Decision Date: 30 April 1991
• Docket Number: No. 1811,1811
• Parties: COMMONWEALTH of Pennsylvania v. Joseph Patrick PURCELL, Appellant. Phila. 1988.
• Court: Superior Court of Pennsylvania

Page 217

589 A.2d 217

403 Pa.Super. 342

COMMONWEALTH of Pennsylvania v. Joseph Patrick PURCELL, Appellant.

No. 1811 Phila. 1988.

Superior Court of Pennsylvania.

Argued March 27, 1990.

Filed Feb. 21, 1991.

Reargument Denied April 30, 1991.

Richard J. Tompkins, Norristown, for appellant.

Mary A. Killinger, Asst. Dist. Atty., Norristown, for Com., appellee.

ORDER

PER CURIAM.

Because a majority of the Court is in agreement that the record discloses no present need to award a new trial but that there is arguable merit in appellant's contention that trial counsel rendered constitutionally ineffective assistance, IT IS ORDERED that the judgment of sentence be and it is hereby vacated, at least for the time being, and the case is remanded for an evidentiary hearing on appellant's claims of ineffective assistance of counsel. If counsel is found to have been ineffective and appellant was prejudiced thereby, a new trial must be granted. If counsel is determined to have acted reasonably, however, or, if appellant was not prejudiced by counsel's conduct, sentence may be reimposed. In the meantime, jurisdiction is not retained.

Before WIEAND, BECK and POPOVICH, JJ.

WIEAND, Judge:

Joseph Patrick Purcell was tried by jury and was found guilty of indecent assault and corruption of a minor. ¹ Post-trial motions were denied, and Purcell was sentenced to serve a term of imprisonment for not less than eleven and one-half (11 1/2) months nor more than twenty-three (23) months on his conviction for corrupting a minor. Sentence was suspended on his conviction for indecent assault. On direct appeal, Purcell asserts that (1) the verdict was contrary to the weight of the evidence; (2) the trial court erred when it removed explicit sexual material from love letters written by the victim; (3) the trial court improperly injected itself into the case; (4) the prosecuting attorney was guilty of prosecutorial misconduct by inappropriate remarks made during closing argument; and (5) defense counsel was constitutionally ineffective in the following respects: (a) for failing to object to the improper admission into evidence of testimony by a clinical social worker who discussed the general dynamics of child sexual abuse; and (b) for failing to request that the jury be instructed regarding the applicable statute of limitations. We will discuss these issues seriatim.

On May 19, 1986, appellant's seventeen year old daughter, Barbara Ann Purcell, reported to a high school teacher that her father had been sexually abusing her for several years. On June 30, 1986, following an investigation by the Montgomery County Office of Children and Youth Services and the Horsham Township Police Department, a criminal complaint was filed against appellant alleging that, during the period between January 1, 1979 and May 17, 1986, he had forced his daughter to engage in a continuing course of sexual activity with him.

The evidence at appellant's trial, for both the Commonwealth and the defense, was summarized in the trial court's post-trial opinion in the following manner:

At trial, Barbara Purcell, the eighteen (18) year-old daughter of the defendant recalled that the first incident of sexual abuse committed upon her by her father [had] occurred when she was approximately eleven (11) years of age. This incident consisted of her father fondling her breasts during her bath. As the years progressed, the forms and severity of abuse increased until by age thirteen (13) or fourteen (14) she was forced to engage in her first act of sexual intercourse with the defendant.

These incidents were continuous and frequent. They would occur

"whenever [the defendant] had the opportunity.... [when] my mother wasn't home, or if she was sleeping, and my brother was sleeping, he would either come in my room and do this to me in my room, or he would make me go downstairs."

....

Sometimes it would happen three (3) or four (4) times in a week, then it lessened; on other occasions, it was more frequent.

The last incident of sexual abuse occurred Saturday, May 17, 1986. She had been to her high school prom the evening before with her cousin, John Purcell. At eight o'clock the following morning, the defendant entered her bedroom, where she was now nude from the waist down. Mr. Purcell began touching her body, he placed his fingers in her vagina, and then proceeded to have sexual intercourse with her. It was after this incident that Barbara decided to report the defendant's conduct to a person in authority. On Monday morning, she informed her high school teacher, Mr. Barsky, about her father's conduct. Mr. Barsky's testimony confirmed both the conversation and the upset she displayed during this disclosure.

Barbara testified that she had not reported this conduct previously because she was embarrassed by the sexual acts perpetrated upon her by the defendant, she feared her father's violent temper, and knew the disclosure would deeply hurt her mother. Thus she hid her fear and torment for years with the exception of a single confidence. When she was thirteen (13) or fourteen (14) years of age, the victim told her girlfriend, Michelle Keller, that her father would enter her bedroom at night and fondle and touch her breasts and body. Michelle Keller, who was no longer a close friend, confirmed the conversation and corroborated the time period when the conversation occurred, namely four (4) or five (5) years prior to the filing of the Bills of Information.

In January, 1985, Barbara Purcell began seeing her first cousin, John Purcell, on a regular basis. He had been visiting the house constantly because of his friendship with the defendant. Barbara, who was not permitted to date other boys, began dating John on a daily basis; for almost one and one-half years they saw each other constantly. The couple went out socially, he escorted her to the two (2) high school proms she attended as well as numerous other dances; they did everything together. Mr. and Mrs. Purcell knew of this conduct and encouraged the relationship. It was during this time that Barbara Purcell fell in love with her cousin and became sexually intimate with him, including intercourse. Her love letters and admissions in court supported her plans to marry him.

The defense in this case, in addition to the defendant's denial, focused upon three areas. First, the defendant claimed these repeated incidents of child abuse could not have occurred because he simply lacked the opportunity to have engaged in such sexual conduct without other family members being aware of it. To this extent the testimony of his wife and son was introduced to show that the defendant had no access to his daughter, or if he did, this access was for periods of very short duration.

Second, he insisted the motivation for these allegations emanated from the fact that he had ordered John Purcell from the house when he found his daughter and John having sexual intercourse on Sunday, May 18, 1986. John Purcell, who remains friendly with the defendant, testified on his behalf. He described the intensity of his relationship with the victim, an intensity which she candidly admitted, and confirmed that he had been struck by the defendant, and ordered from his house when he was caught being intimate with Barbara.

He did, however, admit that in a letter he had received from Barbara prior to May 18, 1986, she told him she wanted to explain to him what "goes on" at her house, and that she refused to go to guidance counseling for it. (Commonwealth's Exhibit No. 1). It is further interesting to note that this witness, knowing the victim loved him and favored his college plans, threatened to leave college to support the Purcell family if she didn't withdraw the prosecution in this case.

Defendant's third defense centered [around] several reputation witnesses who asserted he was a law abiding, honest citizen.

Our role in reviewing the weight of the evidence is limited. "The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion." Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). "A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). "Where the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court's denial of a motion for a new trial will not be disturbed." Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981).

Instantly, appellant's challenge to the weight of the evidence is premised upon the contention that the jury's verdicts of not guilty on charges of rape, incest and involuntary deviate sexual intercourse constituted a finding that the victim's testimony had not been credible. This, he argues, rendered unreliable the verdicts of guilty on charges of indecent assault and corruption of a minor. ² We disagree with this contention. A similar argument was rejected by the Superior Court in Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980), where the Court reasoned as follows:

The fault with appellant's argument is that "[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence." Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971), quoting Commonwealth v. Parrotto, 189 Pa.Super. 415, 422, 150 A.2d 396, 399 (1959). When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, "the court looks upon [the] acquittal as no more...